Sarita Kalucha And Ors. vs Mcd And Ors.
2011 Latest Caselaw 4627 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             W.P.(C) 6796/2011 & C.M. No.13689/2011 (stay)

                                                  Decided on 20.09.2011
IN THE MATTER OF :

SARITA KALUCHA AND ORS.                         ..... Petitioners
                                Through : Mr. Rakesh Tiku, Sr. Adv. with
                                Mr. P. Gautam and Mr. Vivek Ojha, Advs.

                    versus

MCD AND ORS.                                    ..... Respondents
                                Through : Mr. Mukesh Gupta, Adv. with
                                Mr. Nutan, AE(Building), S.P. Zone, MCD.


CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may           No.
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?          No.

     3. Whether the judgment should be                  No.
        reported in the Digest?



HIMA KOHLI, J. (Oral)

1. The petitioners have filed the present petition praying inter alia for

quashing of the order dated 8.9.2011 passed by the respondent/MCD

rejecting the representation of the husband of petitioner No.2 for

regularizing the unauthorized construction existing on the first floor of the

property bearing No.S-207, Greater Kailash Part-I, New Delhi, and for

paying compounding charges in respect thereof. The petitioners have

also sought quashing of the order dated 12.9.2011 issued by the

respondent/MCD under Section 345-A of the DMC Act, 1957 (in short 'the

Act') directing sealing of the entire premises. Pertinently, while the

aforesaid order was signed on 29.8.2011, as is apparent from the date

endorsed at the bottom of the said document, the same was dispatched

on 12.9.2011, the date endorsed on top of the document.

2. On the first date of hearing, i.e., on 16.9.2011, counsel for the

respondent/MCD, who appeared on advance copy, had sought an

adjournment to obtain instructions from his client and as a result, the

matter was adjourned to 19.9.2011. On 19.9.2011, in view of the

submission made by the counsel for the respondent/MCD that only a part

file was available with the officer of respondent/MCD, the present case

was adjourned for today.

3. Today, it is submitted by the counsel for the respondent/MCD that

the present petition is not maintainable in view of the fact that the

petitioners have an equally efficacious alternate remedy available to them

by way of an appeal under the statute, which they have not exhausted.

It is further stated that the show cause notice under Section 345A of the

Act was addressed to the owners/occupiers of the aforementioned

property on 7.7.2011, whereafter a reply was received to the said notice

and after examination, it was found to be unsatisfactory and as a result, a

sealing order was passed on 12.9.2011. On the same date, a vacation

notice under Section 349 of the Act was issued by the respondent/MCD.

The aforesaid vacation notice was pasted at the site on the very same

day. This was followed by a sealing action in respect of the basement

and third floor of the subject premises on the very same day. The ground

and the first floors of the aforesaid premises were sealed on 14.9.2011,

while the second floor was sealed on 15.9.2011.

4. Learned Senior Advocate appearing for the petitioners reiterates the

submissions, as recorded in the order dated 16.9.2011, that the vacation

notice dated 12.9.2011 was delivered at the address of the petitioners by

speed post on 15.9.2011, which was after the sealing action had already

taken place, thus denying the petitioners the opportunity to prefer an

appeal before the Appellate Tribunal, MCD. He further states that

pursuant to the notice to show cause, no reply was submitted by the

petitioners to the respondent/MCD, hence the mention of a reply in para 1

of the impugned order dated 12.9.2011, passed under Section 345A of

the Act is erroneous.

5. Counsel for the respondent/MCD hands over copies of the extract of

the relevant file in respect of the subject premises, which included copies

of the order dated 12.9.2011 passed under Section 345A of the Act,

vacation notice dated 12.9.2011 passed under Section 349 of the Act and

order dated 12.9.2011 passed under Section 345A of the Act, which are

taken on record.

6. A perusal of the aforesaid documents and those filed by the

petitioners bears out the submission made on behalf of the petitioners

that the sealing notice dated 12.9.2011 issued by the respondent/MCD

under Section 345A of the Act, was signed on 29.8.2011, dispatched on

12.9.2011 and came to be served on the petitioners only on 15.9.2011,

as is apparent from a copy of the speed post tracking record maintained

by the postal department and placed on record by the petitioners under

Index dated 19.9.2011.

7. In these circumstances, the present petition is disposed of with the

following directions :

(i) The respondent/MCD shall temporarily de-seal the premises of

the petitioners, i.e., the ground, the first and the second

floors of the subject premises in the course of the day, for a

period of two weeks upto 5.10.2011.

(ii) Upon de-sealing the subject premises, the respondent/MCD

shall simultaneously give written intimation of the said

temporary de-sealing to the local discom for the electricity

supply to be restored in respect of those portions forthwith.

The petitioners shall also be at liberty to bring to the notice of

the discom, the order passed today, for necessary

compliance.

(iii) The petitioners shall be entitled to approach the Appellate

Tribunal, MCD by preferring an appeal against the aforesaid

sealing/demolition orders passed by the respondent/MCD.

(iv) The petitioners shall request the Appellate Tribunal, MCD to

consider their interim application, which shall accompany the

appeal, proposed to be filed by them for being taken up for

hearing.

(v) Both the parties shall be bound by the interim orders that

may be passed by the Appellate Tribunal, MCD, till the same

are altered/vacated in appeal.

8. Needless to state that the observations made herein above shall not

influence the Appellate Tribunal, MCD in any manner and the interim

application and the appeal of the petitioners, shall be heard and disposed

of in accordance with law.

The petition is disposed of, along with the pending application.

A copy of this order be given dasti, under the signatures of the

Court Master.

HIMA KOHLI,J SEPTEMBER 20, 2011 sk